Private-equity profits are safe from President Obama.
PE industry critics who are calling on Obama to use his executive powers to raise taxes on profits pocketed by investment managers, known as carried interest, are looking to the wrong man, according to a letter from Obama’s crisis-era Treasury Secretary Tim Geithner.
“Changes to current tax law require statutory changes, and unfortunately cannot be done by changes to administrative guidance,” Geithner wrote to Senate budget committee member Sheldon Whitehouse (D-RI) in a March 2010 letter obtained by The Post.
Last week, University of San Diego professor Victor Fleischer caused a stir with a New York Times opinion piece arguing Obama could get around Congress and raise taxes on carried interest with a “phone call to the Treasury Department.”
Fleischer, who has testified before the Senate on carried interest, said the White House has used the executive branch’s rule-making authority to make policy changes on student loans and other areas — and could do the same with carried interest after repeated attempts in Congress to change the tax treatment have fallen short.
Under current law, investment managers’ profits are taxed at the long-term capital gains rate of 20 percent, or half the top 39.6 percent tax rate they would pay if it were taxed as ordinary income.
Fleischer said Treasury can reclassify investment managers as “service providers” subject to ordinary income tax rates (as opposed to partners) because they risk little of their own capital.
In an interview with The Post, Fleischer said he wasn’t aware of Geithner’s letter but stated upon reviewing it that it doesn’t address the crux of his argument in the June 12 Op-ed.
“The letter does not address whether Treasury could re-characterize the transaction as one where the partner is ‘not acting in his capacity as a partner,’” said Fleischer.
According to a Treasury spokesperson, “As the letter states, we believe that the loophole in existing law that allows some taxpayers to be taxed at reduced long-term capital gains rates for their income from services should be closed and any major change in this area would require legislation.”